Gory v Kolver NO and Others (Starke and Others Intervening)

• Jurisdiction: South Africa
• Citation: 2007 (4) SA 97 (CC)

Gory v Kolver NO and Others (Starke and Others Intervening)
2007 (4) SA 97 (CC)

2007 (4) SA p97

Citation	2007 (4) SA 97 (CC)
Case No	CCT 28/06
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Van Der Westhuizen J, Yacoob J, Kondile AJ and Van Heerden AJ
Heard	August 24, 2006
Judgment	November 23, 2006
Counsel	D I Berger SC (with P L Mokoena) for the applicant.; E Prinsloo for the first respondent.; No appearances for the second to sixth respondents.; S Nthai and M Mokadikoa for the seventh respondent.; P B Hodes SC (with A Katz) for the intervening parties.; M Chaskalson and M Sikhakane for the counter-intervening party.

Flynote : Sleutelwoorde B

Constitutional law — Legislation — Validity of — Application to intervene — Test for — Whether applicant having direct and substantial interest not decisive — In addition, whether intervention in interests of justice — C Considerations relevant to interests of justice.

Constitutional law — Legislation — Validity of — Intestate Succession Act 81 of 1987, s 1(1) — Section unconstitutional to extent that surviving partner in permanent same-sex partnership in which partners assuming reciprocal duties of support not inheriting upon intestacy — Appropriate remedy — D Section to be read as importing words permitting intestate succession by surviving same-sex partner — Orders of unconstitutionality and reading-in not invalidating any bona fide transfer of ownership prior to date of Court order.

Constitutional practice — Courts — Powers of — Declaration of statutory invalidity — Failure by State to amend impugned legislation after High Court E order — Constitutional Court making exceptional costs order against Minister under whose administration legislation in question falling.

Headnote : Kopnota

In the Court below (TPD) Hartzenberg J had granted, inter alia, the following orders: F

1.

The provisions of s 1(1) of the Intestate Succession Act 81 of 1987 were unconstitutional to the extent that the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support' did not appear after the word 'spouse' as it appeared in the section;

2.

the provisions of s 1(1) were to be read as if incorporating the words 'or G partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support' after the word 'spouse' as it appeared in the section; and

3.

orders 1 and 2 were to have no effect on the validity of any acts performed in respect of the administration of an intestate estate that had been finally wound up by the date of the Court's order. H

Before the Constitutional Court the applicant sought confirmation of orders 1 to 3 and costs against the Minister (the fifth respondent). The intervening parties were, respectively, the surviving sisters and surviving same-sex partner of another deceased who sought leave to intervene in the present confirmation application on the basis that they had a direct and substantial interest in the proceedings.

The application to intervene I

Held, that in cases involving the validity of a statute, an application to intervene would succeed only if the applicant had a direct and substantial interest in the validity or otherwise of the statute, and if in addition it was in the interests of justice that the application be granted. Considerations relevant to whether it would be in the interests of justice to grant such an application J

2007 (4) SA p98

A included the stage of the proceedings at which the application was brought, the attitude of the parties in the main proceedings towards the application to intervene, and whether the submissions which the applicant for intervention sought to make raised substantially new contentions that might assist the Court. (Paragraph [13] at 105C - E.) The applicant sisters certainly had a direct and substantial interest in the confirmation application B as they stood to lose their rights as intestate heirs to their brother's deceased estate if the High Court order of constitutional invalidity was confirmed. (Paragraph [16] at 106E.) It indeed appeared to be in the interests of justice that the applicant sisters be granted leave to intervene. (Paragraph [17] at 107A/B.) Once the sisters were allowed to intervene, the conditional applicant for intervention, too, should be allowed to intervene. C (Paragraph [18] at 107B/C.)

The application to confirm

Held, confirming order 1, that the High Court had correctly found the provisions of s 1(1) to be unconstitutional and invalid to the extent alleged. (Paragraph [19] at 107F - G.)

Held, further, in confirming order 2, that the 'reading-in' ordered by the High D Court was the appropriate remedy in the present case. (Paragraph [26] at 110C/D.)

Held, further, in respect of order 3, that, while it was necessary not to make an order which was fully prospective if the applicant were to be granted effective relief, the High Court had gone too far in seeking to protect the finality of completed acts and the vested rights of third parties. (Paragraphs E [40] - [42] at 115F - 116H.)

Costs

Held, that circumstances existed justifying an exceptional costs order: despite dicta of this Court to the effect that comprehensive legislation accommodating same-sex life partnerships in a constitutionally acceptable manner was F necessary, no such legislation had been forthcoming. Instead, members of the gay and lesbian community had been compelled to approach the Court and, in that way, to achieve piecemeal reform of the law. Justice and equity required that the Minister be ordered to pay the costs of both the applicant and first respondent in both Courts. (Paragraph [65] at 124H - 125D.)

Held, accordingly, that order 3 be amended to read that orders 1 and 2 did not G invalidate any transfer of ownership prior to the date of the order of any property pursuant to the distribution of the residue of the estate unless it was established that when transfer was effected the transferee was on notice that the property in question was subject to a legal challenge. (Paragraph [66] at 125E - 126C.)

The decision of Hartzenberg J in the Transvaal Provincial Division in Gory v H Kolver NO and Others 2006 (5) SA 145 (T) (2006 (7) BCLR 775) confirmed in part.

Cases Considered

Annotations

Reported cases

Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC) I (2003 (12) BCLR 1301): dictum in para [30] applied

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1): dictum in J paras [126] - [127] applied.

2007 (4) SA p99

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR A 735): referred to

Dawood and Another v Shalabi and Another; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837): dictum in para [18] applied

Die Meester v Meyer en Andere 1975 (2) SA 1 (T): dictum at 17E - F applied

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (2003 (11) BCLR B 1220): referred to

Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) (2002 (10) BCLR 1006): dictum in para [32] applied

Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C): referred to

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and C Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): dictum in para [69] applied

Giddey NO v JC Barnard & Partners 2007 (2) BCLR 125 (CC): dictum in para [19] applied

Gory v Kolver NO and Others 2006 (5) SA 145 (T) (2006 (7) BCLR 775): D confirmed

In re Certain Amicus Curiae applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023): referred to

J and Another v Director-General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC) (2003 (5) BCLR 463): referred to E

Khosa and Others v Minister of Social Development; Mahlaule v Minister of Social Development and Others 2004 (6) SA 505 (CC) (2004 (6) BCLR 569): referred to

Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T) (1998 (4) BCLR 444): referred to F

Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) (2005 (2) BCLR 129): referred to

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) (2006 (3) BCLR 355): referred to G

Minister of Justice v Ntuli 1997 (3) SA 772 (CC) (1997 (6) BCLR 677): referred to

Moseneke and Others v The Master and Another 2001 (2) SA 18 (CC) (2001 (2) BCLR 103): referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): dicta in paras [20], [37], [64] - [67] and [73] - [75] applied H

National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) (2003 (5) BCLR 476): referred to

Neethling, Ex parte, and Others 1951 (4) SA 331 (A): referred to

Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC) (1997 (10) BCLR 1337): referred to I

Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001 (2) BCLR 133): referred to

S v Basson 2007 (3) SA 578 (CC) (2005 (12) BCLR 1192): dictum in para [110] applied

S v Bhulwana; S v...